December 7, 2018

A & F Med., P.C. v Global Liberty Ins. Co. of N.Y. (2018 NY Slip Op 51812(U))

Headnote

The court considered the fact that the defendant failed to send a delay letter to the plaintiff as required by 11 NYCRR 65-3.6 (b) after sending a second examination under oath (EUO) scheduling letter to the plaintiff's assignor. As a result, the defendant failed to properly toll the time to pay or deny the plaintiff's claims, and was precluded from raising its defense that the plaintiff's assignor had failed to appear for scheduled EUOs. The main issue decided was whether the defendant had properly sent a delay letter to the plaintiff in accordance with the regulations. The holding of the case was that the judgment in favor of the plaintiff was affirmed, as the defendant failed to comply with the regulations regarding the sending of the delay letter.

Reported in New York Official Reports at A & F Med., P.C. v Global Liberty Ins. Co. of N.Y. (2018 NY Slip Op 51812(U))

A & F Med., P.C. v Global Liberty Ins. Co. of N.Y. (2018 NY Slip Op 51812(U)) [*1]

A & F Med., P.C. v Global Liberty Ins. Co. of N.Y.

2018 NY Slip Op 51812(U)

Decided on December 7, 2018

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 7, 2018

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : MICHELLE WESTON, J.P., MICHAEL L. PESCE, BERNICE D. SIEGAL, JJ
2015-1045 K C

A & F Medical, P.C., as Assignee of Christina Nicholson, Respondent,
against
Global Liberty Ins. Co. of NY, Appellant.

Rossillo & Licata, P.C. (Nancy S. Linden of counsel), for appellant. Korsunskiy Legal Group, P.C. (Henry R. Guindi and Melissa Berkman of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered January 16, 2015, deemed from a judgment of that court entered March 9, 2015 (see CPLR 5501 [c]). The judgment, entered pursuant to the January 16, 2015 order denying defendant’s motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment, awarded plaintiff the principal sum of $1,916.46.

ORDERED that the judgment is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint and plaintiff cross-moved for summary judgment. By order entered January 16, 2015, the Civil Court denied defendant’s motion and granted plaintiff’s cross motion. This appeal by defendant ensued. A judgment was subsequently entered on March 9, 2015, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Pursuant to 11 NYCRR 65—3.6 (b), upon sending a second examination under oath (EUO) scheduling letter to plaintiff’s assignor, defendant was required to send plaintiff a delay letter (see Doshi Diagnostic Imaging Servs. v State Farm Ins. Co., 16 Misc 3d 42 [App Term, 2d Dept, 9th & 10th Jud Dist 2007]; see also Advantage Radiology, P.C. v Nationwide Mut. Ins. Co., 55 Misc 3d 91 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). However, it failed to do so. Consequently, defendant failed to demonstrate that it had properly tolled the time to pay or deny plaintiff’s claims and, as a result, it is precluded from raising its proferred defense that plaintiff’s assignor had failed to appear for duly scheduled EUOs (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]).

Accordingly, the judgment is affirmed.

WESTON, J.P., PESCE and SIEGAL, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 07, 2018